Racial-Profiling Hearing Gets Heated

Mark Wilson/Getty Images
Mark Wilson/Getty Images

Most of the experts who testified on Tuesday at a Senate Judiciary Committee hearing — about the data, emotions, rationale and solutions surrounding racial profiling — agreed that targeting potential suspects on the basis of race, national origin or religion is just shoddy police work. But on the questions of how to stop the practice and whether it's a legitimate problem, their testimony became decidedly more contentious.


Two witnesses at the hearing, which was filled to capacity by concerned members of the public, were black men in law enforcement. Ronald Davis, chief of police for East Palo Alto, Calif., advocated for the passage of the End Racial Profiling Act. Introduced in 2011 by Sens. Ben Cardin (D-Md.) and Harry Reid (D-Nev.), the bill would mandate police training on racial profiling, require record keeping about whom authorities stop and, ultimately, lead to the loss of federal funding if state and local governments don't adopt policies to stop racial profiling.

Police on Both Sides

"I fear that without this legislation … we will continue business as usual and only respond to this issue when it surfaces through high-profile tragedies such as the Oscar Grant case in Oakland, Calif., and the Trayvon Martin case," said Davis, who added that in his 27 years of experience, he's found racial profiling to be ineffective. "We recognize that the more people of color, especially young men, are profiled and unfairly incarcerated, the more likely it is that their communities will lose trust and confidence in the criminal-justice system," he said. "And the less likely those communities will partner with the police to fight crime."

On the other hand, Frank Gale, national second vice president of the National Fraternal Order of Police, strongly opposed the End Racial Profiling Act — and argued that racial profiling isn't even a real problem. "This bill provides a 'solution' to a problem that does not exist, unless one believes that the problem to be solved is that our nation's law-enforcement officers are racist," said Gale, adding that the FOP membership finds the legislation highly offensive.

He also described the bill's requirement to keep additional records as needlessly bureaucratic and said that, since the U.S. Supreme Court has already ruled on the unconstitutionality of racial profiling, rendering a new law is unnecessary. Furthermore, he found the bill's definition of racial profiling far too broad, prohibiting the use of race in selecting individuals for investigation, in most cases, to any degree.

"Race can be a factor in a criminal profile but is never the only factor; nor is it the most significant factor," he said, saying that police stops are always based on behavior and conduct. "It is simply one of many."

Davis countered that the bill is not about casting police officers as racist; it's about accountability. "If any group should be held accountable, it must be the police. We have awesome powers and responsibilities — the power to take life and the power to take freedom," he said. "The idea that we could not collect data to ensure that that power is used judiciously and prudently would be counter to sound managerial principles."


Anthony Romero, executive director of the American Civil Liberties Union, added that data suggest that police stops are not based on conduct. "In 2011 a record 685,000 New Yorkers were stopped by the New York City Police Department. Eighty-eight percent were totally innocent of any crime. Fifty-three percent of those were black, 43 percent were Latino and 9 percent were white," said Romero, who supports the End Racial Profiling Act. "And a remarkable number of guns were found on 0.2 percent of all stops. With all due respect, Mr. Gale, I must demur when you say this is all conduct driven, because clearly these facts beg otherwise."

But Is It OK Sometimes?

One expert, however, backed up Gale's arguments. Roger Clegg, president and general counsel for the Center for Equal Opportunity, a conservative think tank dedicated to issues of race and ethnicity, also opposed the End Racial Profiling Act. While he said he generally disagrees with using race as a sole factor in deciding whom to investigate, he said that it's important to make some exceptions in the contexts of anti-terrorism efforts and border security.


"In the war on terror, where we are fighting an enemy that has a particular geopolitical and perverted religious agenda, it makes sense in some circumstances to look at organizations that have particular religious and geopolitical ties," said Clegg, who also stated that it makes sense for law enforcement to look more closely at people from particular countries or who speak certain languages when it comes to determining their immigration and citizen status. "I don't consider those things to be racial profiling."

Where African Americans are concerned, Clegg first acknowledged that they are often stopped on the basis of race alone, which he opposes. "Nonetheless, I think we have to recognize that it's going to be tempting for the police and individuals to profile so long as a disproportionate amount of street crime is committed by African Americans," he continued. "And there will be a disproportionate amount of street crime committed by African Americans so long as more than seven out of 10 African Americans are being born out of wedlock … So ultimately, people in society who don't like racial profiling are going to have to face up to this problem."


(After some groaning from the audience, Sen. Dick Durbin called the room to order.)

David Harris, professor and associate dean for research at the University of Pittsburgh School of Law, shot back that racial profiling fundamentally does not work to create greater safety or security. "What is the rate at which police officers and security officers succeed, or hit, when they use race, ethnic appearance and religious appearances, as opposed to when they do not? The data on this question is unequivocal," said Harris. "When police use race, ethnic appearance or religious appearance this way … they become less accurate than police officers and security agents who do not use these practices."


Harris explained that this happens because profiling distracts from careful observation of behavior. "Black street crime — respectfully, I have to disagree — is not the issue," he said. "The issue is how we deploy our law-enforcement officers in ways that are effective, fair and carry out the most important ideals of our society."

Cynthia Gordy is The Root's Washington reporter.